James asks “The ABC show No Ordinary Family aired a recent episode where the character Jim, who is invulnerable, deflects a bullet which ricochets off of a number of metal objects and winds up striking a teen bystander. … Jim feels responsible for what happens to the young man, especially in that he chose to confront the man whom he knew was armed. How much responsibility would he truly bear? Does he have a duty to take this fight into a secluded area (which he did – the bystander was inside a nearby building)? Could he be charged with reckless endangerment, even though he didn’t know the boy was there, since he does seem to be showing off in front of the criminal?”

Although No Ordinary Family isn’t based on a comic book, it does feature a lot of superhero comic book tropes and—most importantly for us—it’s set in a world that shares our legal system. This particular question is also interesting because it’s the kind of collateral damage that shows up in many comics.

So is Jim guilty of anything here? Or perhaps liable in tort for the teenager’s injuries? The first question we have to ask is “what law applies?” When talking about Gotham or Metropolis there’s not always a definite answer for that, but in this case we know the show is set in a fictional town in California, so we’ll apply California law. First, the criminal law.

I. Was It a Crime?

As it turns out, like many states California does not have a general offense of reckless endangerment. California does have reckless endangerment-like laws regarding the discharge of firearms, but those don’t apply here since Jim wasn’t the one pulling the trigger. But maybe a different offense fits. Let’s consider the most generic one: simple battery, which is defined in Cal. Penal Code § 242 as “any willful and unlawful use of force or violence upon the person of another.”

As you can probably guess, the analysis here depends on what exactly “willful” means. In California, the mental state or intent required for battery is the same as for assault because an assault is simply an attempted battery. People v. Hayes, 142 Cal.App.4th 175, 180 (Cal. Ct. App. 2006). “Assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” People v. Williams, 26 Cal.4th 779, 790 (2001). Since Jim did not know that the bystander was there and since ricochets are highly unpredictable, Jim couldn’t have known that his actions would “probably and directly result in the application of physical force against another.” So we don’t think Jim committed a crime in this case.

II. Was It a Tort?

If Jim isn’t criminally liable, what about a tort suit by the victim? Here we can turn to the law of negligence. In California the elements of negligence are a legal duty of due care and a breach of that duty that is the proximate (i.e. legally responsible) cause of the resulting injury. This is also known as “duty, breach, causation, and damages.” Conroy v. Regents, 45 Cal.4th 1244, 1250 (2009). Here the damages are clear (the dude got shot), so let’s consider the first three elements.

A. Duty

As a general rule in California, everyone has a duty to use ordinary care to avoid injuring others. Cal. Civ. Code § 1714(a). However, this only extends to injuries that were reasonably foreseeable to the defendant at the time. Dillon v. Legg, 68 Cal.2d 728, 739 (1968). The analysis, however, is generalized to “whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.” Lawson v. Safeway Inc., 191 Cal.App.4th 400, 409 (Cal. Ct. App. 2010). “Sufficiently likely” means “likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.” Friedman v. Merck & Co., 107 Cal.App.4th 454, 466 (Cal. Ct. App. 2003).

So would a reasonably thoughtful person take into account the possibility of ricocheting bullets striking an unknown person? Certainly many superheroes are concerned with the possibility of their actions harming bystanders (including bystanders that may not be readily apparent), and many go out of their way to avoid or prevent such harm. On the other hand, ricochets are unpredictable, and we’re not sure the reasonably thoughtful person would spend much time contemplating physics while getting shot at. We could see a court going either way with this, but let’s assume the court says there’s a duty here so we can continue the analysis.

B. Breach

In general, a duty has been breached when the defendant has displayed less than ordinary, reasonable care or prudence. See Mosley v. Arden Farms Co., 26 Cal.2d 213 (1945). So how do we judge that? California, like many states, follows the Learned Hand formula of negligence, named for the famous Judge Learned Hand. Crane v. Smith, 23 Cal.2d 288, 298-99 (1943). Basically, you multiply the likelihood of the harm by the magnitude of the harm, then compare the result to the cost of preventing the harm. If the cost to prevent the harm is less than the average cost of the harm, then not preventing it is unreasonable. In other words, spending a $1 to prevent $2 worth of harm is reasonable, but spending $2 to prevent $1 worth of harm is not. It’s a kind of reductive view of rationality, but the law is like that sometimes.

In this case it’s hard to put a number to either the harm or the cost. Instead, we can simply consider the circumstances and ask what a normal person would do if someone pointed a gun at their face. Most normal people would do exactly what Jim did: throw a hand up in a—for most people futile—effort at self-defense. And the ricochet might have occurred even if it had been an ordinary person; bullets can ricochet off of rings, watches, and even bones.

In fact, it was actually self-defense in Jim’s case, since a high-powered bullet fired at close range is capable of hurting him, so he tends to deflect bullets with his hands rather than his face. Since an ordinary person would probably have done exactly what Jim did under the circumstances, we don’t think there was a breach of duty here. There’s no negligence without a breach, and so Jim wouldn’t be liable and the analysis ends there. Thus, we don’t actually have to consider causation (although if people are interested we think there’s a sort of flimsy argument to be made there as well).

(NB: The fact that it was a lawful act of self-defense is not itself a defense to negligence. “No purpose, however benevolent, excuses negligence.” Woodhead v. Wilkinson, 181 Cal. 599, 602 (1919). What matters is that an ordinary person would have done the same thing under the circumstances.)

III. Conclusion

We don’t think Jim is criminally or civilly liable for the victim’s injury. By contrast, the attacker is at a minimum guilty of attempted murder (of Jim) and grossly negligent discharge of a weapon. He would also be liable in tort.

That’s all for this week! Keep your questions and post suggestions coming in!

Another obvious scene with this problem is in Superman Returns, in which Superman is hit by thousands of 50-calibre bullets and allows them to ricochet off him with no attempt to control their final trajectory. Since this occurs on top of a tall building bullets may have been falling over an area of several square miles, possibly causing injuries and undoubtedly a good deal of property damage. Given his powers he should have been able to catch them or zap them with heat vision – is he negligent in not doing so?

Perhaps Superman watched the Mythbusters episode in which they showed that a bullet fired up in the air is unlikely to seriously injure anyone on the way down because the terminal velocity of a falling bullet is significantly less than the velocity of a bullet fired from a gun. Mind you these weren’t 50-calibre bullets they were using. They ended up having to declare the myth “plausible” because there have been reports of people injured by bullets fired straight up in crowds during celebrations. It’s an incredibly stupid thing to do but it’s happened.

The bullets that were lethal were fired at angles rather than straight up and thus maintained stability and a ballistic trajectory, allowing them to hit fatally. It was the bullets that were simply falling downward at terminal velocity that were nonlethal. Bullets ricocheting off Superman and falling off a building would be similarly nonballistic and thus unlikely to cause any serious harm to bystanders. In fact, they’d be less dangerous to folks down on the street than to the bad guys there on the roof, since air resistance would’ve slowed them as they fell.

The last bullet fired, the one that hit the boy, was shot by itself and not directly preceded or followed by more shots. Already in episode 1 (No Ordinary Pilot), before he had practised using his powers, Jim was able to catch a bullet flying a metre to his right. A bullet aimed at him, where he does not lose time getting to it, should’ve been easy to catch.

You also mentioned the fact that “ricochets are unpredictable”. This is true but does not completely hold in Jim’s case. What Jim does in the mentioned episode is “wave” the bullets off with his hand. He himself gives the bullet a new direction either to the left or right of his person. He knows the bullets are going to be flying either to the right or the left but you don’t see him checking his sides before waving them off.

Taking into account that he could catch the bullet or direct the bullet downwards into the ground without any more risk to himself would he be liable through negligence? Wouldn’t “closing one’s hand” be a very small cost as compared to the costs linked to the harm: costs of the hospital treatment?

Of course the above assumes the court knows about the other options Jim had.

Considering the amount of time between a bullet being fired (apparently at close range) and Jim deciding to ‘wave’ the bullet with his hand I don’t think we could reasonably assume that he would have had time to check every possible ricochet angle. At best he would have had seconds, probably less.
Of course that brings up the point that it’s inherently unrealistic for him to be able to block bullets (especially since he isn’t listed as having super speed or reflexes) but we have to suspend some disbelief for any of this to work.

Directing the bullet downwards wouldn’t necessarily prevent a ricochet. And further, the bullet ricocheted both left and right before finally striking the person. If Jim had waved the bullet in the other direction, the same thing might have resulted. Given how difficult it would be to predict the path the bullet would take in any case, I don’t think it was negligent not to look around before deflecting the bullet.

It’s a difficult question whether someone with enhanced abilities would be judged according to the standard of a reasonable unenhanced person or the standard of a reasonable enhanced person. In cases where the defendant has a physical disability the standard is a reasonable person with the same physical disability. See, e.g., Conjorsky v. Murray, 135 Cal.App.2d 478, 482 (Cal. Ct. App. 1955). That suggests that the standard in Jim’s case should be a reasonable nigh-invulnerable person. But with a bullet coming straight towards one’s face, I think even an invulnerable person might reflexively throw a hand up to block it. He’s only had these powers for a short time, and reflexes are hard to change.

As for failing to catch the bullet: is it known that Jim can reliably catch bullets? Maybe this round was traveling considerably faster than the one he caught. Or maybe he was trying to catch this one and failed. This is the kind of thing a jury would consider.

Thanks for the reply James. I recall him catching bullets on multiple occasions, however I’m reluctant to watch through all 17 episodes in my archive just to follow up on this question.

With the court having to take into account the standard for “a reasonable nigh-invulnerable person” the question really isn’t whether Jim could catch the bullet but if the average nigh-invulnerable person could. As the standard probably doesn’t involve being a crime-fighter and being in contact with bullets on a near-daily basis I think it is safe to assume catching them will not be considered regular.

I think James is right in that if a bullet is AIMED at you then your reflex is self defense. I’m no lawyer but I watched the CSI episode in which a CSI ran a suspect down with his car because he was an imminent danger to a third party. The facts of the case were that he turned the corner, saw the guy beating down on an old man and simply kept moving when the suspect approached his car. The judge agreed that he had absolutely no time to think through what he was going to do and, besides, if he had gotten out of the car then he wouldn’t have had any other means to defend himself. (He wasn’t carrying a gun.) Even though Jim is not a state actor, I imagine all the same logic would apply to his case.

While the homicide CSI Greg Sanders committed was found “excusable” (out of justifiable, excusable, or criminal – Ep 7×7), he was sued by the family and it ended up being settled out of court for $2.5 million (Ep 7×18).

So he got the middle ground, which is that his action was not justifiable but understandable, and didn’t protect him from a lawsuit.

Jim might run into the same problems. While he may get away from criminal charges, in a civil case the question is going to be how people feel about him deflecting bullets into bystanders. To his advantage, he can tell his lawyer to continue the fight, where the city may have paid out in Greg’s case to avoid the publicity of the incident. To his disadvantage, it was a true innocent that got hurt.

The real legal issue would be transferred intent. It is my understanding that most states have laws that state that if anyone is killed during the commission of a crime, than the person who started the crime is to blame. This would mean that the person who fired at Jim was to blame for the murder of the child, because he started the crime.

Transferred intent may make the shooter guilty of something like aggravated battery or assault with a deadly weapon (I didn’t look up the particular crime in California), but the shooter’s guilt wouldn’t necessarily absolve Jim.

Consider the hypothetical situation in which Jim intentionally deflects the bullet so that it strikes a bystander, for whatever reason. In that case, both Jim and the shooter would have committed crimes. So we have to consider Jim’s actions and state of mind separately from the shooter’s.

I thought he was talking about felony murder. If Jim intentionally deflects a bullet to hit someone then it is second degree murder but then the shooter is guilty of felony, right? Beacuse assault with a deadly weapon is a felony but then somebody died as a result of his actions (even if it was not the person he was aiming at).

It’s like the old question of Pyro burning Wolverine: if he knows Wolverine is going to heal then he is still guilty of assault but if somebody is standing behind Pyro and Pyro did not know they were there then he’ll be in a lot of trouble even if he didn’t intend to kill that person. Wolverine is probably okay because in a dangerous situation hiding behind Wolverine would probably seem like a good idea.

So what if Jim deflected the bullet BACK at the shooter? He has plausible deniability. (“The bullet bounced off my hand and right back at him!”) Morally, though, there’s the question of an invulnerable person deflecting a bullet back at a vulnerable person: the bullet hitting the shooter does nor have the same effect as the bullet hitting Jim. It would be like somebody punching Jim and then him punching the person back and killing them, except that the latter is something he would probably get charged and convicted for.

Of course, in retrospect, Jim might have thought that deflecting the bullet back at the shooter is prefereable to deflecting it anywhere where it could hurt innocents. In a way, it is like when police return fire when someone is shooting at them. If Jim can get good enough at deflecting bullets that he can actually aim at the shooter’s leg then it would be the quickest way to eliminate the threat and it wouldn’t be considered deadly force. The shooter could still try to sue Jim for his injury. I guess that’s the chance that crime fighters take when they aren’t state actors and don’t have the system there to support them.

Ducking or dodging the bullet is an interesting case. Let’s suppose the bullet passes Jim and strikes someone in the fairly busy street behind him. That person now sues Jim for negligence, arguing that he should have taken the bullet knowing that the cost to him would have been negligible whereas the cost of letting a bullet enter a busy street is high.

Jim’s counter-arguments would be two-fold. First, ducking or dodging is a reflexive action that a reasonable person—even a reasonable invulnerable person—might take. Second, penalizing Jim for dodging is tantamount to imposing a duty to rescue or a duty to prevent harm caused by a third party, whereas the general rule is that no such duty exists, and the exceptions to the general rule don’t seem to apply here (e.g. Jim did not cause the harm or start a rescue, he’s not a parent or someone with similar responsibilities, etc).

I think Jim was negligent in this case, because he didn’t have to let those bullets be fired at all. He had the guy cornered in an alley, but instead of grabbing him and taking away his gun, Jim just stood there and let the guy shoot at him for several moments while he deflected the bullets. He had plenty of opportunity to stop the guy from shooting, but he chose not to take that opportunity because, quite frankly, he was showing off. And that’s why the ricochet hit the kid. Jim let it happen when it didn’t have to. I call that negligence.

The bullets were fired while Jim was still too far away to take the gun. But beyond that, remember that there’s no generally no affirmative duty to rescue or protect others from the danger posed by a third party, so Jim was under no affirmative duty to protect the bystanders. He could have stood there and gotten shot at all day. It was only because he chose to act by attempting to deflect the bullet that negligence became an issue at all.

Now, one could argue that the reasonable nigh-invulnerable person would have charged in and taken the gun rather than deflect the bullets. I would argue that a reasonable nigh-invulnerable person could have reflexively deflected the bullets out of self-defense, as Jim did. But deciding what a reasonable person would do is ultimately up to a jury. Here we can only develop competing theories; it’s impossible to say with certainty what a jury would decide.

I don’t accept the “too far away to take the gun” argument, because he just stood there for ten or fifteen seconds and let the cornered guy shoot at him. He could’ve easily closed the distance and taken the gun away from the guy well before the firing of the bullet that hit the kid. It was only by his own conscious choice that he remained too far away.

Maybe the law doesn’t make that an actionable offense, but by the standards of superhero behavior, Jim acted irresponsibly by choosing to grandstand rather than act promptly to disarm the perpetrator. I would at least hope he’s learned to be more careful in the future (though whether the show has a future is uncertain).

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